IP Information & News

The KitKat trade mark misfortune continues

The latest (but probably not the last) instalment of the KitKat four finger shape mark has just been handed down, and it’s a win for Cadbury’s (again).

On 17 May 2017, the Court of Appeal handed down its ruling with a unanimous decision rejecting the registration of the 3D shape mark. Lord Justices Vos, Kitchin and Floyd agreed that although the public may perceive the shape as a characteristic of a KitKat, or find that the shape brings to mind the product and brand name, this recognition or association does not amount to distinctiveness in trade mark cases.

Clearly, this is another bitter blow for Nestlé, which also lost its EU 3D shape mark in December 2016.

As previously mentioned, EU companies that might wish to protect shape trade marks should consider filing national applications, rather than an EU wide application, as case law has shown that distinctiveness needs to be proven in all member states. The overall message to take from the Nestle saga and this judgement is that the bar has been set very high for the registration of shape marks in the UK.

Take a look back at the history of the KitKat case:

KitKat shape EU trade mark invalid

In the long running dispute between Nestlé and Cadbury (Mondelez International), the General Court of the EU has ruled that the EUIPO (European Intellectual Property Office) must reconsider the now (in)famous registration of the 3D four finger KitKat shape.

The KitKat trade mark misfortune continues

The latest (but probably not the last) instalment of the KitKat four finger shape mark has just been handed down, and it’s a win for Cadbury’s (again).

Have a break Nestlé… (an update)

The Court of Justice of the European Union (CJEU) has given its guidance on whether a KitKat could be registered as a 3D shape mark.

Have a break Nestlé…

In July 2010, Nestlé applied to register its well-known four finger chocolate coated wafer KitKat bar, which has been sold in the UK since 1935, as a 3D shape trade mark in the UK in class 30.


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